Posted
by
Soulskill
on Saturday February 04, 2012 @07:10PM
from the german-courts-love-patent-drama dept.

SpuriousLogic sends this excerpt from a BBC article detailing the suspension of a sales ban on certain Apple products in Germany:
"Motorola Mobility had forced Apple to remove several iPad and iPhone models from its online store [yesterday] after enforcing a patent infringement court ruling delivered in December. An appeals court lifted the ban after Apple made a new license payment offer. However, Germany-based users may still face the loss of their push email iCloud service after a separate ruling. 'A suspension like this is available only against a bond, but Apple is almost drowning in cash and obviously won't have had a problem with obtaining and posting a bond.' ... A statement from Apple said: 'All iPad and iPhone models will be back on sale through Apple's online store in Germany shortly.'"
Reader DJRumpy points out that Motorola is seeking royalties of 2.25% for Apple's wireless devices in exchange for a license to use Motorola's patents.

You use something someone created, you pay them for it. Then why is it when the situation is reversed, Apple says: "F*ck you! I'm going to ban it.". Just makes them seem like hypocrites and frankly, douches.

Do as I say, not as I do. It's a standard mantra amongst religious folk....

You may be unaware of this, but if you bring up religious zealotry at times that have absolutely nothing to do with religious zealotry, you're going to bring religious zealotry in to defend it. Understand?

Cut it out. If you want to discuss religious silliness, you need go no further than the smartphone OS wars.

You use something someone created, you pay them for it. Then why is it when the situation is reversed, Apple says: "F*ck you! I'm going to ban it.". Just makes them seem like hypocrites and frankly, douches.

Do you have any references to Apple refusing to license patents they included in a standard with FRAND promises or trying to charge a competitor a higher rate than other companies?

What do you think the case is about?! Apple have been trying to licence the patents from the beginning (as in, they legally have to - the patents in question are part of the 3G specification covered under RAND terms, they know that they must licence them), but exactly what they are worth is the crux.

Moto has been attempting to do away with that pesky RAND stuff and charge what it likes, which it simply cannot do. Apple is willing to pay what everyone else pays.

What do you think the case is about?! Apple have been trying to licence the patents from the beginning (as in, they legally have to - the patents in question are part of the 3G specification covered under RAND terms, they know that they must licence them), but exactly what they are worth is the crux.

Moto has been attempting to do away with that pesky RAND stuff and charge what it likes, which it simply cannot do. Apple is willing to pay what everyone else pays.

There's no evidence of any of that, other than Apple press releases. The German court in fact have ruled that this is exactly what Apple didn't do, hence the court case and the blocking of their sales.

Motorola have no legal obligation to charge their FRAND license amount for the time that Apple were not paying up. As several people on this article have pointed out, FRAND only applies if you license the patent in a timely fashion rather than bitching and procrastinating like Apple have.

This case is about German court agreeing that FRAND applies to future use, but not for the PAST infringement and that Motorola is right in asking for MORE money for the time when Apple used their stuff without paying them.

But Apple is equally claiming (and has a case) that this "past use without paying" is not their fault and they should not be penalised for it.

The patent is in the 3G spec, so they had to use it. They bought licences for the 3G spec patents (there are thousands), either directly or via their chip supplier (who also pays for the use of the patents). Now Motorola is claiming Apple didn;t pay for one particular patent and continually refused. Out of hundreds and hundreds? Come on!

The details of the negotiations between Apple and Motorolla have not been disclosed, however, we do know that Motorolla approached Apple as soon as the iPhone was launched, and offered them terms that they considered to be FRAND. Apple rejected those terms (whatever they were), and offered their own, which Motorolla rejected. Judges in Germany and the ITC apparently both agree that Motorolla's offer was FRAND, otherwise they wouldn't have ruled the way they did. Furthermore, we know these courts are not pus

More properly, unmasks them. Apple has always been like this since my earliest dealings with them (1984, how apropo). For some unfathomable reason, Apple's true corporate culture has only recently become widely known and properly called out.

Slashdot really has fallen so far in the many years I've been here. Back in the old days, accusing someone who holds a different opinion to you of being a shill was something that occasionally came up in jest. Now it's used as a legitimate arguing tool on pretty much every story, regardless of topic.

I'm not even sure where it began, or why? Does it somehow "validate" the slashdot community as important enough in global political policy and technology news that there are shills from Google, Apple, Microsoft, Sony, Facebook, the oil industry, the "global warming is real green scam lobby", the republican party, the democrat party, big pharma... all fighting over the supposed "must-win" battleground of slashdot comments?

The fact that you're anticipating a paid PR shill response in advance is just hilarious.

Ya know, that is the part I have always found frankly mystifying when it comes to Apple. you talk to Applelites or whatever you want to call them and the way they talk you'd think it was SJ and a bunch of hippies sitting around with no shoes in bean bag chairs somewhere in Cupertino. Whether you like their devices or hate them SJ was NEVER like that, he was always frankly an asshole, see how he screwed his supposedly good friend Woz out of half the profits of their game sale to Atari. The one thing ALL those companies had in common, Apple, MSFT, Oracle, etc is at least 1 type A super asshole with a cutthroat take no prisoners attitude that had no problem backstabbing their way to the top.

So i just never understood this complete disconnect between reality and mythology when it comes to Apple. Frankly i'm surprised that SJ's douchebag behavior is finally coming out now that he's gone, frankly i figured they'd make him into a saint if past treatment of him and Apple was any indication. If you like their products? hey i'm glad you found something that works for you, really wish you nothing but happiness. but don't pretend that Apple is ANY different than IBM or any other megacorp because they aren't. These companies are NOT your friends, they do NOT care about you, and if Apple could see their profits rise 15% this quarter by throwing you in a cage with a horny silverback you'd be getting some gorilla loving before the day is out. Maybe a few applelites ought to read this book [amazon.com] and do some introspection.

Can we all just agree that the patent system is idiotic and far too overbearing already?

How would we know? When patents are discussed around here they're assumed to be six words long, mainly because not one person here has ever actually read any of the patents in question. If we can't do that, then no, we cannot agree the patent system is idiotic We actually have to understand it, first.

Yes we do, given that any time the Apple design patent question comes up, there are 20 comments on how it's a patent on rounded rectangles.

If anyone had actually *read* the patents we might actually get somewhere with the discussion. But that's a lot to expect. I've seen several comments recently that failed to even read the summary, let alone the article or any links in it.

It's a synecdoche (I don't say a justified one) -- the design patent covers a shape whose most conspicuous element is the rrect shape (in plan view). Someone choosing to refer to it as "a patent on rrects" certainly does not mean they haven't read it.

If the patented subjects were simple enough to have been implemented many times independently by engineers versed in the art, solving the same problem, then they were obvious, and shouldn't have qualified for patent protection in the first place.

And you can be pretty sure they weren't developed from the patent filings, as most companies prohibit engineers from looking at patents, as you get more leniency if you accidentally violate a patent than if you do it knowingly, which is another telling fact against

What we need to do is separate patents from ideas. Patents are a good thing, they are the reason big companies spent millions of dollars on R&D pushing the bounds of science. Where the system gets abused however is the use of other peoples inventions. Like apple owning the patent for fuel cells in computers when they didn't invent either tech. Not saying ideas like this aren't valuable but they aren't even in the same league as inventing the actual computer. So what if we start an idea register where th

And you can be pretty sure they weren't developed from the patent filings, as most companies prohibit engineers from looking at patents

That's a HELL OF A LOT OF ASSUMPTIONS there.

How the hell do we know that Apple isn't trollling patent filings for good ideas? We should just assume they are infallible corporate citizens? How do we know they didn't hire a bunch of ex-Motorolla engineers, who re-implemented the sme stuff they'd done (or heard about) at Moto? How do we know these guys didn't use Motorolla

How the hell do we know that Apple isn't trollling patent filings for good ideas? We should just assume they are infallible corporate citizens?

You don't. But I, and the grandparent, were speaking in generalities. When you get down to specific cases then you start needing evidence - one way or another.

How do we know these guys didn't use Motorolla cell phones, see the feature (therefore learning that it was viable, and gaining some knowledge of how it was implemented by it's behavior) and copy it

Patents don't protect "knowledge that it's viable". They protect the implementation. If you're able to reverse engineer a feature from looking at its interface, then it is, almost by definition, obvious. Remember, what they do isn't protected. What's protected is how they do it. If you look at a UI, and come up with the same method of accomplishing it

If you look at a UI, and come up with the same method of accomplishing it without looking at their code, or a description of the algorithm or some such, then how they do it is fairly obviously obvious.

I can look at a typewriter and figure out every detail that was patented. That doesn't mean typewriters were obvious and shouldn't have been patentable.

Firstly, no, if the typewriter were invented now, it should not be patentable, as pretty much everything about it is trivial.

However, assuming all you had access to was 1850s tech, and without looking at the mechanism (that was sorta the point of "without looking at their code".) would you make the same claim? All you'd have to work with is "I push buttons and words come out on the paper". Plenty of inventors worked on the same problem before a commercially successful typewriter came about.

How would we know? When patents are discussed around here they're assumed to be six words long, mainly because not one person here has ever actually read any of the patents in question. If we can't do that, then no, we cannot agree the patent system is idiotic We actually have to understand it, first.

I don't think reading the patents is the problem. If you look at individual patents then you will undoubtedly find some that are reasonable and have narrow claims (though generally nobody infringes those) and others that take the form "{thing the Post Office has done for 200 years} but on the internet" or "{thing secretaries have done for 500 years} but on a phone."

The thing is, the individual patents have never been the problem. The problem is that each major company has thousands of patents on thousands o

If we can't [read the patents], then no, we cannot agree the patent system is idiotic

I disagree. We may not be able to discuss or agree that the specific patents in question are idiotic without reading the claims, but we can still discuss the patent system as a whole.

If the system promotes a world where two companies can have legal pissing matches all around the world, taking turns having each others' products yanked off the market (and then reinstated!) then I would call that a pretty retarded system,

Motorola sued Apple about this issue (maybe not in Germany but certainly here in the U.S.) before Apple really started going after other companies. I'm not defending Apple, I'm just pointing out that this didn't happen to Apple because of them "flinging around lawsuits", Motorola went after Apple before that happened.

Seems to be a one-way thing. When Apple files law suits against Apple competitors, other companies are not allowed to sell products that compete with Apple. There is no option to post a bond, or whatever.

But when other companies sue Apple. Apple still gets to sell Apple products.

Apple gets special treatment, that Apple competitors do not get. That is hardly a case of Apple being bit in the butt.

Yes, the patent system is broken. But Apple chose to file those bogus law suits, the broken patent system did not

Simple. If every one of the (estimated) eighteen companies that own essential GSM patents demanded a separate license at 2.2% instead of the few pennies per unit that they almost certainly charge to everyone else, it would add up to almost half the cost of the device.

Besides, there's debate over whether Apple's purchase of off-the-shelf GSM silicon (rather than designing it themselves) means that they already paid for the license, in which case Motorola is double dipping....

2.25% of a billion dollars is 22.5 million dollars. that is just enough money for some hedge fund douchebag to buy another house in connecticut, pay his child support to his 3 ex wives, hush money to his two favorite prostitutes, and still have enough left over to buy a week's worth of cocaine and diamond encrusted ice cream at some shitty, over-baroque palace in Las Vegas or Dubai.

2.25% is an enormous sum of money, when you consider that a device might use patented techs from hundreds of companies. If each of these hundreds of companies asked for 2.25%, you're gonna be in trouble.

2.25% is an enormous sum of money, when you consider that a device might use patented techs from hundreds of companies. If each of these hundreds of companies asked for 2.25%, you're gonna be in trouble.

It would be impossible at even 0.1% since there are 2987 patents in 1729 families [dime-eu.org]. 2.25% will never fly, especially for a single patent (probably a patent family actually). An average licensing cost of 0.01% per family would be 17.29% of the cost of the device. There is no way 2.25% can be considered FRAND.

for initial negotiated fees i agree.. but for fees applied to a product made by a company that knowingly attempted to doge the fee..it isn't.

i'm not taking any side on this.. as i don't know the details.. but it only makes since that the fee applied after you are caught doing wrong be high enough to prevent you from doing it again. if it was the same cost as just licensing it to begin with then there would be zero incentive to license it ahead of time but rather you would produce and hope you didn't get caught an did then it's a know cost that you had already accounted for.

but the question is did they decline payment from Apple before or after they filled the injunction?

If it was during the development period prior to first sale then Moto is in the wrong. If it was after Apple started selling and "got caught" doing wrong then Moto is within their rights to refuse to license it at that point, at least until the law suite is completed.

There's no way Apple is going to start selling hardware that bakes in patented standards like GSM/3G/Wifi/etc without getting its licencing ducks in a row - they have whole departments for that sort of thing (as does any large company).

There's absolutely zero chance that they decided to try and "dodge" paying for one of the patents that they are *guaranteed* to be using (since they are in the standards). Risking their product line (and ultimately, profit and healthiness of business) on something that braind

I'm sure they have their ducks in a row... or at least they though they did.. I do have to wonder if they didn't though - else how could Moto have gotten the successful injunction to begin with?

From what i can tell so far Apple assumed it paid the fees when it bought chips from Qualcomm (ak Qualcomm paid Moto the fees).. but that doesn't seem to be true.. Question is if the agreement between Apple and Qualcomm outlined the related fees - if

As that very article points out, Motorola has declined various settlement offers from Apple for PAST infringement of Motorola's patents. Motorola has licensed these very patents to Apple on FRAND terms for use in newly developed products which is why the iPhone 4S was not affected by the sales injunction, only the older models.

Since Apple did not license the patent on FRAND terms before pushing out the older iPhones, Motorola does not have any obligation to be fair, reasonable or non-discriminatory in negotiating the deal for those products now.

If every company with a FRAND-related patent charged 2.25% nobody would be able to create a product. That you think it's not a ton of money shows how short-sighted you are being and how you're failing to look at the bigger picture.

Not to mention that FRAND stands for "Fair, Reasonable, and Non-Discriminatory" and 2.25% is most certainly _NOT_ Fair nor Reasonable.

The patents are in the 3G standard, therefore Apple didn't infringe them "on purpose" - by implementing 3G they were obliged to use the patent, whether they wanted to or not.

Where it gets sticky is that the patents are RAND covered, so Moto must charge everyone the same. Of course, everyone cross licences, and makes other payment deals etc, but ultimately everyone pays the same. It gets more tricky when you have to decide what your cross licenced patents are worth, or how much a certain percentage of sales

Most of them are weak in that they're FRAND. The actual infringement is done by Qualcomm (or whoever built the chip) and they've already licensed the appropriate patents (something Samsung found only figured out after the judge told laughed them out of court). Motorola tried to renegotiate their license with the Qualcomm so that license wouldn't apply if the chips were sold to Apple. Motorola and Samsung are currently being investigated by the EU over their abuse of FRAND patents.

Okay, They want 2.25% from Apple. How much did they license their patents to other manufacturers for? Since these are FRAND patents they can't charge more than they do competitors in order to try to wring non-FRAND patent licenses out of Apple. So, anyone? Without this information, none of us can have an educated opinion on this topic. Perhaps that is what other companies are paying or perhaps Motorola are trying to abuse the system the way it seems Samsung did.

FRAND applies to licensing costs. Apple claims to have a license for the patents in question through their suppliers, so if anything it then becomes an issue for the courts to decide liability and, potentially, damages, not for a company to retroactively license under terms that contradict their legal and contractual obligations to standards bodies and the EU government.

Frand-type patents involve technologies that are deemed to be part of an industry standard. In this case Motorola's innovation is deemed crucial to the GPRS data transmission standard used by GSM cellular networks across the world.

Companies must offer Frand-type patents for a reasonable fee to anyone willing to pay.

Apple had previously said it would be willing to pay the fee going forward, but the two firms dispute how much Apple should pay for failing to license the technology up until now. Missed payments are not covered by the "reasonable" rule, and Motorola is able to demand a more expensive price.

Except that with the other manufacturers, it probably has been a patent cross licensing, something that Apple has refused to do from the start.

And Apple built his iUniverse around infringing products, as it refused to license the technologies (waiting for some court to come to help)... IANAL but there is clearly a damage to the other players as Apple may not have been able to enter the market like he did should he have paid for the licences from the start... At that time, it was far from "some little money out of a big warchest"...

Except that with the other manufacturers, it probably has been a patent cross licensing, something that Apple has refused to do from the start.

Apple does cross license their FRAND patents which are included in the standards. They don't cross license their other patents such as UI and proprietary hardware. That's the whole point, Motorola seems to be trying to use their FRAND patents (which were included in standards only because of their promises) to leverage against Apple to get licensing to patents that aren't part of any standard. It is exactly why there are rules in the first place about how you can use patents once you agree they are to be used in a standard.

apple didn't want a biolerplate frand agreement. They wanted their own agreement (which covered previous unlicensed use), and thats what allowed Motorola to dictate whatever terms they want. There is big money involved because if Motorola is correct apple has been infringing on their patent for multiple product generations. The money isn't just licensing for next year, but licensing/damages for the patent being used unlicensed for years and producing big profit.

apple didn't want a biolerplate frand agreement. They wanted their own agreement (which covered previous unlicensed use), and thats what allowed Motorola to dictate whatever terms they want. There is big money involved because if Motorola is correct apple has been infringing on their patent for multiple product generations. The money isn't just licensing for next year, but licensing/damages for the patent being used unlicensed for years and producing big profit.

The other way round, actually. What Apple wanted is a license under FRAND terms: You give me the license, I pay you cash. Now many companies in that business don't want these terms, they prefer: You give me a license to your patents, I'll give you a license to mine, because it is cheaper. And that's the kind of license that Motorola wanted to offer and that Apple didn't want.

And there can't be damages for any time where Motorola didn't offer a license under FRAND terms, otherwise the requirement for FRAN

Here is my question on this: the infringement to the patent in question, from what has been reported, only applies to iPhones up to the 4, do not include the 4S because it uses a Qualcom chip instead of the previous brand Apple used. Qualcom is making chips that cellphone makers use to make phones. Since Qualcom licenses these patents from Motorola, the phone becomes immune.

This tells me that the issue should not be Apple, but the chip manufacturer. It is that chip maker that failed at licensing the patents

I'll take some number from my butt (definitions of my butt may vary, but in this context it is random site on internet [mobithinking.com]).

1.186 billion mobile broadband subscribers.
Let's say that half of these are on a 3G chip that somehow requires the Motorola 3G license: 593 million.
If these devices sell for an average of $20 we would have 11,86 billion in sales for these devices.
If Motorola wants 2.25% of the sales of these devices that would mean $297 million, a very significant number considering it is a single patent of a large portfolio of 1729 patents (yes, one thousand seven hundred and twenty nine [mobithinking.com]).

Imagine if each of these patents would warrant an average licensing cost of 0.1% rather than the 2.25% that Motorola wants, then we would look at a licensing cost of more than the sales price to license 3G technology for the device. 2.25% does not smell FRAND to me, but I am no patent lawyer, I only pretend I know stuff on the internet.

well that was because apple was willing to only pay the fee as if they had done it from the start.. and completely ignore the fact that hey had not licensed it prior to selling products using it.

I agree that that would have been a problem for Apple, however, due to exhaustion because Qualcomm paid Motorola for the chips used by Apple the license was already paid. Then Motorola re-negotiated their bilateral license with Qualcomm and now Motorola wants money from Apple for the time that Qualcomm had already paid, thus trying to get money twice plus some extra.

I was under the impression they were only in position to claim money for phones with non-Qualcomm devices, since Qualcomm had that agreement already in place. Think the deal is about the chip that was used before they switched to Qualcomm.

You mean like paying when you buy the chips from Qualcomm who had already paid a licensing fee to Motorola for the patents in question?

Yeah.

Motorola is attempting to double-dip. They want money from Qualcomm _and_ Apple for the same chip.

Actually, that last part isn't true - what Motorola actually wants is access to Apple's non-FRAND patents and they're attempting to leverage their own FRAND patents against them in the hopes of forcing a cross-licensing agreement (*). For chips made by Qualcomm who already paid to license the patents. So the double-dipping part is true...

* And I remain baffled that the Slashdot crowd considers this business practice to be acceptable, regardless of who does it or against whom it is done. It goes against the very heart of everything that FRAND stands for and, if successful, will have chilling effects on, well, pretty much any and every industry that makes use of FRAND patents to establish industry standards. In my opinion, _ANY_ company that abuses a FRAND patent should be viewed in a negative light. Then again, I must be new here...

The iPhone 4 and earlier did not use Qualcomm chipsets. The iPhone 4 and earlier used a Skyworks chipset, I can't find anything confirming that Skyworks actually has a patent license (with the sole exception of the resolution of a patent lawsuit between them and Qualcomm).

"And I remain baffled that the Slashdot crowd considers this business practice to be acceptable, regardless of who does it or against whom it is done. It goes against the very heart of everything that FRAND stands for and, if successful, will have chilling effects on, well, pretty much any and every industry that makes use of FRAND patents to establish industry standards. In my opinion, _ANY_ company that abuses a FRAND patent should be viewed in a negative light."

I always thought it was amusing that the German court system would ban the sale of iPads after much of the Bundestag (the German parliament) bought them for themselves and claimed them as a work expense. They're ubiquitous [cultofmac.com] now in the Bundestag... you see them in photos, one member had to pause during the speech he was reading from his iPad when it crashed, they have officially approved the device for use in reading speeches, and they made the Polish parliament (Sejm) so jealous they followed suit! They're A

I'm setting the over/under on the year Apple launches a military strike on a sovereign nation at 2018.

I had set it at 2019, but so much money came in on the under that I had to move the line.

I'm giving 20 to 1 that the strike is a HAARP-style weather modification attack, 12 to 1 that it's a death ray fired from a satellite and 5 to 1 that it's via an airborne flu virus modified to make the male population of the target country gay.

A straightforward predator attack with very shiny drones carved out of single

The laws of UK, most of Europe and AFAIK even some US states would disagree with you there. Even in the US I do believe that there's a certain amount of due process to go through - you know, proving the case and so on.

If Motorola are trying to double dip and/or charge Apple more than the going rate (the ND in FRAND stands for "non-discriminatory") then they're in the wrong. If the 2.5% figure is correct, that's completely usurious for one component in a complex device. Motorola lost the right to license t

It gives me (and a lot of people) the impression that they're "turning over or upsetting" the ban. They're not. They're only paying money to COMPLY with the court order, just like how Motorola wanted and how patents SHOULD work.